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IN THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT IN AND FOR MARION COUNTY, FLORIDA WELLS FARGO BANK,

N.A. SUCCESSOR BY MERGER TO WACHOVIA BANK, N.A., Plaintiff v. ROBERT V. OAKLEY, et al. Defendants

Case No.: 2011-0793-CA-O

DEFENDANTS ROBERT V. OAKLEYS ANSWER AND AFFIRMATIVE DEFENSES COMES NOW, Defendant, Robert V. Oakley, and for their Answer and Affirmative Defenses to plaintiffs Complaint, and in support thereof states the following: 1. Admit that it is an action to foreclose property in Marion County, Florida. Defendants expressly, directly and explicitly deny any right to foreclose in its entirety and strict proof is demanded thereon. 2. Admit that defendant Robert V. Oakley executed a promissory note and mortgage. Defendant is without knowledge as to the recording information, and so the allegations are expressly, directly and explicitly denied and strict proof is demanded thereon. Admit that copies of a Mortgage and Note are attached to plaintiffs complaint as Exhibits. 3. Deny that plaintiff is entitled to foreclose the mortgage and therefore the allegations are expressly, directly and explicitly denied and strict proof is demanded thereon. 4. Admit that Robert V. Oakley is the record owner of the property. 5. Denied. Defendants are without knowledge of the material allegations of this paragraph, therefore the allegations are expressly, directly and explicitly denied and strict proof is demanded thereon. 6. Denied. Defendants are without knowledge of the material allegations of this paragraph, therefore the allegations are expressly, directly and explicitly denied and strict proof is demanded thereon.

7. Defendants deny owing plaintiff $113,399.86 that is claimed due in principal on the note and mortgage, interest from June 1, 2010, late charges, all costs of collection including title search expenses for ascertaining necessary parties to this actions, unpaid taxes, insurance premiums, accumulated late charges and inspection fees. 8. Deny that all conditions precedent to the acceleration of the Note and foreclosure of the mortgage have been performed or have occurred and therefore the allegations are expressly, directly and explicitly denied and strict proof is demanded thereon. 9. Defendant is without knowledge of the material allegations of this paragraph regarding plaintiffs obligations concerning its attorney fees and therefore the allegations are expressly, directly and explicitly denied and strict proof is demanded thereon. Deny that plaintiff is entitled to recover its attorney fees pursuant to the promissory note and or mortgage. 10. Deny that the interests of Robert V. Oakley are subject, subordinate and inferior to the right, title, interest and lien of Plaintiffs Mortgage. Defendant is without knowledge of the material allegations of this paragraph regarding any other defendant and therefore the allegations are expressly, directly and explicitly denied and strict proof is demanded thereon. 11. Admitted. 12. Defendants are without knowledge of the material allegations of this paragraph regarding Unknown spouse of Robert V. Oakley and therefore the allegations are expressly, directly and explicitly denied and strict proof is demanded thereon. 13. Defendants are without knowledge of the material allegations of this paragraph regarding Tenant #1, Tenant #2, Tenant #3 and Tenant #4 and therefore the allegations are expressly, directly and explicitly denied and strict proof is demanded thereon. WHEREFORE, defendant prays that this Honorable Court dismiss this action in toto ordering that plaintiff take nothing by this action; award Defendant costs and

reasonable attorney fees as provided by 15 U.S.C. 1640 (a) & (e), Fla Ch. 57.105 and the mortgage and note, and other such relief that this court deems proper. AFFIRMATIVE DEFENSES TO COMPLAINT COMES NOW, defendant Robert V. Oakley, by and through undersigned counsel, and files these Affirmative Defenses to the Complaint filed by plaintiff and in support thereof states: FIRST AFFIRMATIVE DEFENSE FAILURE TO STATE A CAUSE OF ACTION; PLAINTIFF DOES NOT HAVE STANDING; PLAINTIFF IS NOT THE REAL PARTY IN INTEREST. 14. The mortgage and note attached to plaintiffs complaint are inconsistent with plaintiff allegations as to the ownership of the mortgage and note and plaintiffs authority to action behalf of the owner. Plaintiff has failed to establish itself as the real party in interest and has failed to state a cause of action. 15. The mortgage that the plaintiff has attached as Exhibit A to its complaint shows that the mortgagee is MERS as nominee for Wachovia Mortgage Corporation 16. The note that the plaintiff has attached as Exhibit A to its complaint states that the lender who originated the note and the payee is Wachovia Mortgage Corporation. The Note may be improper as endorsement may not be dated, notarized, permanently affixed to the note or placed on the instrument where there is ample room for such placement. 17. No copy of any assignment of the mortgage to the plaintiff is attached to plaintiffs complaint. 18. Plaintiff does not properly own the mortgage it seeks to foreclose under Florida and /or Federal Law. Thus plaintiff lacks standing to foreclose. 19. Plaintiff is not entitled to maintain an action if it does not own the mortgage and hold the note which is purportedly secured by the subject mortgage. Your Construction Center, Inc. v. Gross, 316 So. 2d 596 (Fl. 4th DCA 1975)

Greenwald v. Triple D Properties, Inc., 424 So. 2d 185, 187 (Fla. 4th DCA 1983). 20. FRCP 1.130(a) states Allcontractsupon which an action may be brought or defense made, or a copy thereof or a copy of the portions thereof material to the pleadings, shall be incorporated in or attached to the pleading. 21. The Court should deny plaintiffs request for the relief demanded in its complaint for failure to attach a copy of any assignment of the mortgage if such assignment even exists, the latter document being absolutely necessary to convey authority upon plaintiff to bring this action. 22. Harry Pepper & Assocs., v. Lasseter 247 So.2nd 736, 736-737 (Fla. 3rd DCA 1971) instructs the Court: (if there) is an inconsistency between the general allegations of material facts in the complaint and the specific facts revealed by the exhibit (attached or referred to in the complaint) they have the effect of neutralizing each allegation as against the other, thus rendering the pleading objectionable. See also Hillcrest Id. P.1056: Buck v Kent Sec. of Broward 638 SO.2d 1004 (Fla. 4th DCA 1994): Ginsburg v Lennar Florida Holdings, Inc., 645 So.2d 490, 494 (Fla. 3rd DCA 1994), review denied, 659 So.2nd 272 (Fla. 1995): Franz Tractor Co. v J.I. Case Co., 566 S0 2nd 524, 526 (Fla. 2nd DCA 1990). 23. Plaintiff was not the real party in interest on the date this action was commenced, has not shown any authority to bring this action, has filed documents inconsistent with the allegations of the complaint, has failed to state a cause of action upon which relief may be granted and has failed to show its proper standing in bringing this action. SECOND AFFIRMATIVE DEFENSE FAILURE OF CONTRACTUAL CONDITION PRECEDENT NO NOTICE OF DEFAULT OR ACCELERATION 24. Plaintiff failed to provide defendant with a Notice of Default and Intent to Accelerate as required by and/or that complies with Paragraph 22 of the subject mortgage. As a result, defendant has been denied a good faith opportunity, pursuant to the mortgage and servicing obligations of the plaintiff

and/or the true and correct servicer, assignee or assignor, to avoid acceleration as well as this action to foreclose. THIRD AFFIRMATIVE DEFENSE FAILURE OF GOOD FAITH AND FAIR DEALING AND UNFAIR AND UNACCEPTABLE LOAN SERVICING 25. Plaintiff intentionally failed to act in good faith or to deal fairly with the defendant by failing to follow the applicable standards of residential single family mortgage servicing thereby denying defendant access to the residential mortgage servicing protocols applicable to the subject note and mortgage. FOURTH AFFIRMATIVE DEFENSE ILLEGAL CHARGES ADDED TO BALANCE 26. Plaintiff has charged and/or collected payments from defendant for attorney fees, legal fees, foreclosure costs, late charges, property inspection fees, title search expenses, filing fees, broker price opinions, appraisal fees, and other charges and advances; and predatory lending fees and charges that are not authorized by or in conformity with the terms of the subject note and mortgage or the controlling regulations which specifies the waiver of late payments and other collection charges as part of the forbearance and loan modification default loan servicing. Plaintiff wrongfully added and continues to unilaterally add these illegal charges to the balance plaintiff claims is due and owing under the subject note and mortgage. FIFTH AFFIRMATIVE DEFENSE UNCLEAN HANDS 27. Plaintiff comes to court with unclean hands and is prohibited by reason thereof from obtaining the equitable relief of foreclosure from this Court. Plaintiffs unclean hands result from the plaintiffs improvident, predatory and intentional failure to comply with the material terms of the mortgage and note and the failure to comply with the default loan servicing requirements that apply to this loan, all as described herein above. As a matter of equity this Court should refuse to foreclose this mortgage because acceleration of the

note would be inequitable, unjust, and the circumstances of this case render acceleration unconscionable. This court should refuse the acceleration and deny foreclosure because plaintiff has waived the right to acceleration or is estopped from doing so because of misleading conduct and unfulfilled contractual and equitable conditions precedent. SIXTH AFFIRMATIVE DEFENSE IMPROPER COLLECTION AND/OR CREDIT OF PAYMENTS 28. Plaintiff, and/or its assignor or servicer failed to comply with the conditions and terms of the mortgage and note and/or 12 U.S.C. 2601, et seq. (RESPA), with respect to proper computation, collection and application of defendant mortgage payments and the escrow accounts, if any and payments required under the note and the mortgage. 29. Alternatively, plaintiff and/or its assignor or servicer has collected payments, but failed to properly credit defendant account, and/or collected mortgage payments and/or escrow payments and did not properly credit or post the payments to defendant account in violation of the note and the mortgage. 30. Defendant made payments to plaintiff and/or the assignor or servicer during the term of the loan that plaintiff and/or the assignor or servicer did not properly post to defendants account as required by the note and the mortgage. 31. Therefore, Defendant is entitled to an accounting of all moneys defendant paid during the term of the loan and all moneys collected by plaintiff and/or the assignor or servicer under the mortgage and note and all money plaintiff and/or the assignor or servicer paid out on his account because of noncompliance with the note and the mortgage. 32. As a result of the improperly collecting and posting of payments to defendants account and improper payments of moneys that plaintiff and/or its assignor paid out on defendants account plaintiff and/or its assignor or servicer is estopped or has waived its right to claim a default and is otherwise before the Court with unclean hands and cannot foreclose.

SEVENTH AFFIRMATIVE DEFENSE CAPACITY


33. Technically, the complaint does not even identify the plaintiff. The plaintiff is

named only in the caption and in the commencement, neither of which is a part of the complaint for the purpose of allegations of ultimate fact. Trawicks Florida Practice and Procedure (2010 Edition), sections 6:2 and 6:3; Altamonte Hitch & Trailer Service, Inc. v. U-Haul Company of Eastern Florida, Inc., 498 So. 2d 1346 (Fla. 5th DCA 1986).
34. The Plaintiff in the complaint is named and identified as WELLS FARGO

BANK, N.A., SUCCESSOR BY MERGER TO WACHOVIA BANK, N.A. The description is not provided to explain the legal nature, registered agent or address of the named plaintiff. Plaintiff has failed to allege its capacity to sue. Such allegations are required under Rule 1.120(a), first sentence, to show the courts jurisdiction (of the person). Therefore, the complaint fails to state a cause of action. 35. Fla.R.Civ.P. 1.120 (a) Pleading Specific Matters provides:
(a) Capacity. It is not necessary to aver the capacity of a party to sue

or be sued, the authority of a party to sue or be sued in a representative capacity, or the legal existence of an organized association of persons that is made a party, except to the extent required to show the jurisdiction of the court. The initial pleading served on behalf of a minor party shall specifically aver the age of the minor party. When a party desires to raise an issue as to the legal existence of any party, the capacity of any party to sue or be sued, or the authority of a party to sue or be sued in a representative capacity, that party shall do so by specific negative averment which shall include such supporting particulars as are peculiarly within the pleader's knowledge.

36. Additionally, Fla.R.Civ.P. 1.110(b) requires that a complaint include a short and plain statement of the grounds upon which the courts jurisdiction depends. Plaintiffs failure to plead or specify in what capacity the plaintiff brings suit and its failure to define or identify in any way the nature of its legal entity, the plaintiff has failed to plead that it has the capacity to maintain suit before this court.
37. Capacity to sue is an absence of legal disability which would deprive a party

of the right to come into court. 59 AM.Jur.2d Parties 31 (1971). This is in contrast to standing which requires an entity have sufficient interest in the outcome of the litigation to warrant the courts consideration of its position. Keehn v. Joseph C. Mackey and Co., 420 So.2d 398 (Fla.App 4 Dist. 1982) 38. With few Florida Court opinions addressing the issue of capacity to sue defendant urges this Court to consider Federal Court opinions interpreting the Federal Rule of Civil Procedure 9(a) from which Florida Rule of Civil Procedure 1.120(a) is derived.
39. As such, the issue of capacity to sue may be raised by motion to dismiss

where the defect appears on the face of the complaint. Hershel California Fruit Products v. Hunt Foods 111 F. Supp. 603 (1975) quoting Coburn v. Coleman 75 F. Supp. 107 (1974): Klebano v New York Produce Exchange 344 F.2nd (2nd Cir. 1965).
40. Failure to raise the issue of plaintiffs capacity by a specific negative averment

has been held to constitute a waiver of that defense. McDonough Equip. v Sunset Amoco West, 669 So.2d 300 (Fla App 3 Dist.1996): Plumbers Loc U.N. 519, Miami Fla. v. Serv Plbg., 401 F. Supp 1008 (1975): and see Sun Val. American Land Lease, 927 So. 2d 259 (Fla. App 2 Dist 2006): Shaw v Stutchman, 105 Ne. 128 (1989). EIGHTH AFFIRMATIVE DEFENSE NOTE IS NON NEGOTIABLE

41. Plaintiff may contend that the note attached contains a valid endorsement. This might be true if the note were a negotiable instrument, because section 673.3011(1) provides that an instrument may be enforced by a holder; and section 671.201(21) (a) defines a holder (in the context of a note) as either the named payee or the person in possession of a negotiable instrument that is payable to bearer; and under section 671.201(5), a bearer is a person in possession of a negotiable instrument indorsed in blank. 42. However, these provisions of Chapter 673 only apply to negotiable instruments. Section 673.1041(2). The note attached to the complaint is, as a matter of law, non-negotiable under section 673.1041(1) (c), because it contains a provision for late charges in paragraph 6(A). Such a provision constitutes an other undertaking or instruction which causes the negotiability of the note to fail, even though the note may have otherwise qualified as a negotiable instrument under subsections (1)(a) and (b) of the same section. GMAC v. Honest Air Conditioning & Heating, 933 So. 2d 34 (Fla. 2d DCA 2006). NOTE that the GMAC case is the only appellate decision in Florida, to the best of movants knowledge, ever to interpret and apply section 673.1041(1)(c), and so it is binding on this court in the absence of contrary authority in this District or from the Florida Supreme Court. NINTH AFFIRMATIVE DEFENSE VALIDITY OF SIGNATURES DENIED

43. Florida Statutes 673.3081 allows the defendant to challenge the signatures of

any endorsement or instrument. 44. Defendant challenges and disputes the validity of any signature on any instrument endorsing or assigning the subject note and/or the subject mortgage filed or to be filed in this matter.
45. After any such signature is challenged in the pleadings the burden shifts to the

party claiming that the signature is valid. Genuineness of endorsements of

prior holders of negotiable instrument is not presumed and when properly put in issue by pleadings, party seeking to establish status of holder of order paper must prove validity of those endorsements on which his status depends. Eder v Fisher, App 2 dist., 183 So.2nd 39(1965). TENTH AFFIRMATIVE DEFENSE IMPROPERLY VERIFIED COMPLAINT

46. Plaintiff filed its Mortgage Foreclosure Complaint on or about March 18,

2011 and as such the complaint is required to be verified under Florida Rules of Civil Procedure within the body of the complaint as codified by Florida Statute 92.525 and as interpreted by Florida Case Law.
47. Plaintiffs Complaint is not properly verified.

48. A properly executed verification must be signed by a duly authorized corporate representative of the plaintiff. 49. A plaintiff relying upon an agency relationship must provide evidence of that agency either by offer it into evidence or by recording it in the public records. 50. Plaintiffs Complaint is insufficient to create a cause of action because the form of the verification does not comport with statutory requirements. 51. Plaintiffs verification is verified by Laura Friedrich. Laura Friedrich is not identified in the verification attached to plaintiffs complaint as an officer of the plaintiff and no authority for her signature is attached. Ms. Friedrich identifies herself as a Legal Process Specialist, a position that is not a corporate officer of the plaintiff.
52. In Fla. Sup. Ct. Order SC09-1460, the Court gives guidance as to the purpose

and intent of the rule change. Quoting from the opinion the Court noted: The primary purposes of this amendment are (1) to provide incentive for the plaintiff to appropriately investigate and verify its ownership of the note or right to enforce the note and ensure that the allegations in the complaint are accurate; (2) to conserve judicial resources that are currently being wasted on inappropriately pleaded "lost note" counts and inconsistent allegations; (3) to prevent the wasting of judicial resources and harm to defendants resulting from suits brought by plaintiffs not

entitled to enforce the note; and (4) to give trial courts greater authority to sanction plaintiffs who make false allegations. (emphasis added) 53. The Florida Supreme Court has recently adopted a new Florida Rule of Civil Procedure for all mortgage foreclosure complaints involving residential real property. The new Florida Rule of Civil Procedure 1.110(b) requires the utilization of verified complaints and became applicable to Florida Courts on February 11, 2010. 54. Plaintiffs complaint fails to comply with applicable Florida Rules of Civil Procedure and must fail. DEMAND FOR JURY TRIAL Defendant hereby demands trial by jury as to all issues so triable thereof. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to Albertelli Law PO Box 23028 Tampa, Fl., 33623 this _______ day of ____________2011 via U.S. Mail postage prepaid.

Respectfully Submitted: By:_______________________ Rory Rohan FBN 0310093 900 Colony Point Circle Suite 310 Pembroke Pines, Fl., 33026 561-252-4411